U.S. v. Eng, 229
| Decision Date | 14 January 1994 |
| Docket Number | No. 229,D,229 |
| Citation | 14 F.3d 165 |
| Parties | UNITED STATES of America, Appellee, v. Johnny ENG, Defendant-Appellant. ocket 93-1197. |
| Court | U.S. Court of Appeals — Second Circuit |
John L. Pollock, New York City (Susan C. Wolfe, Hoffman & Pollock, on the brief), for defendant-appellant.
Catherine E. Palmer, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Susan Corkery, Asst. U.S. Atty., Brooklyn, NY & Karen Patton Seymour, Asst. U.S. Atty., New York City, on the brief), for appellee.
Before: NEWMAN, Chief Judge, KEARSE, Circuit Judge, and TENNEY, * District Judge.
This appeal primarily concerns the authorized terms of supervised release for those convicted of drug offenses. The general statute establishing supervised release terms provides that for Class A and Class B felonies, the maximum supervised release term is five years. 18 U.S.C. Sec. 3583(b) (1988). However, the statute establishing drug offense penalties provides that, for offenses above stated minimum quantities, a sentence must include a term of supervised release of at least five years, implying that a longer term is permissible. 21 U.S.C. Sec. 841(b)(1)(A) (1988). Johnny Eng appeals from the March 18, 1993, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge) convicting him of drug offenses and imposing a sentence that includes a lifetime term of supervised release. We conclude that Congress intended the sentencing authority granted in section 841(b)(1)(A) to override the limitations in section 3583(b), at least in cases such as Eng's, reject Eng's other contentions, and therefore affirm.
The Government charged Eng with running a heroin trafficking operation that imported heroin from Hong Kong for distribution in the United States from 1987 to 1988. The evidence showed that Eng employed three different methods to import the drugs--possession by couriers who flew into John F. Kennedy International Airport, packaging in parcels mailed from Hong Kong, and concealment inside a bean sprout washing machine imported from Hong Kong.
In early 1987, Eng paid Wah Tom Lee $50,000 for each of six shipments of heroin that she picked up from couriers traveling through Kennedy Airport. The total amount of heroin delivered through this method was 66 kilograms. The bean sprout washing machine was used to conceal 78 kilograms of heroin sent from Hong Kong. Though Eng was acquitted of the charges related to the washing machine importation scheme, the 78 kilograms of heroin were considered by the Judge at sentencing.
The details of the mail package smuggling scheme are pertinent to the evidentiary issue in this case. Sometime in mid-1987, Eng asked Wah Tom Lee and Michael Yu to recruit individuals to receive drugs sent in parcels from Hong Kong. Yu and Lee procured the names of three individuals, Tina Wong, Cathy Leung, and a woman known as Helen (or "Ah Ling"), who were willing to receive the packages in return for $20,000 apiece. After Wong received the first parcel, Eng instructed Yu and Lee to go to Wong's apartment to inspect it. They found that the parcel contained stuffed animals, peppers, and numerous tea boxes. The tea boxes contained seven kilograms of heroin. Several days later, Eng instructed Lee to deliver the heroin to him near a bakery in New York City's Chinatown. At Lee's instruction, Wong brought the heroin to a meeting place near the bakery, met Lee and Eng there, and then transferred the package to Eng. Eng paid Lee and Yu $50,000, of which $20,000 was given to Wong.
A week later, Eng called Lee to inform her that a second parcel would arrive soon. Lee, in turn, called Tina Wong, who notified Cathy Leung. After receiving the package, Leung took it to Wong's apartment. Wong examined its contents and informed Lee how much heroin it contained. Lee called Eng to confirm the delivery. Eng instructed her to leave the heroin in Wong's apartment. Later, at a party at his house, Eng asked Lee to deliver the parcel to someone named "Lap." Lee arranged for Wong to deliver the heroin to Lap the following day. Eng again gave Lee and Yu $50,000 for the delivery, and Lee in turn gave $20,000 to Leung and $10,000 to Wong.
Following the second delivery, Lee and Yu accompanied Eng to Hong Kong at Eng's expense. Eng introduced Lee and Yu to "Ming," the person who was sending the heroin parcels, and told Ming to contact Yu and Lee if he was not available. Lee provided Eng with a list of four more people willing to receive packages.
Shortly after the group returned from Hong Kong, four more packages were delivered, each containing seven kilograms of heroin. The third parcel was delivered to Cathy Leung's residence. With Eng's permission, Lee sold a portion of the heroin to Ching-Yi Chen. Sometime around the delivery of the third parcel, Lee and Yu, with Eng's permission, began selling the heroin themselves. Also, at about this time, Lee and Yu again traveled to Hong Kong, at Eng's direction, this time accompanied by Tina Wong and two other women. The five of them concealed more than half-a-million dollars on their persons for delivery to Ming.
The fourth parcel was delivered to "Helen," and then transferred to Wong's residence. Lee again sold part of the heroin in this parcel to Ching-Yi Chen. The fifth parcel arrived at Agnes Chin's residence, and was stored in Wong's house. Once again, Lee sold part of the heroin in the parcel to Chen. The sixth parcel was delivered in December 1987 or January 1988 to "Helen," who transferred it to Lee. The seventh parcel arrived at Gwendolyn Chan's residence, and was later delivered by Lee to a man named Dai Gow.
The eighth shipment arrived in January or February of 1988 at Agnes Chin's residence. The package was transferred to Lee, who delivered it to Eng by placing it in his jeep.
On February 9 and 10, 1988, three more boxes from Hong Kong containing heroin and addressed to residences in the New York metropolitan area arrived at customs in California. One of these packages was marked for delivery to a "M. Hsieh" at Gwendolyn Chan's address. The Drug Enforcement Administration then conducted a "controlled delivery," which resulted in Chan's arrest when she accepted delivery of the parcel. Chan agreed to cooperate, and the conspiracy began to unravel. Chan's cooperation led to the arrest of Leung, who also agreed to cooperate. Leung's cooperation led to the arrest of Lee, Yu, and Tina Wong in early March 1988.
The Government presented a somewhat different version of events in United States v. Michael Yu, et al., No. 88-CR-138(S) (E.D.N.Y. Aug. 31, 1988). In that case, the Government prosecuted Eng's co-conspirators in the heroin importation scheme. The Government charged Wah Tom Lee and Michael Yu, along with four others, with conspiracy to distribute drugs and importation and distribution of heroin imported via mail parcels shipped to the United States from Hong Kong. The charges stemmed from the same mail parcel deliveries that formed the basis for the indictment against Eng.
In Yu, the Government argued that Tina Wong had delivered the first two packages to Ching-Yi Chen, while in the instant case the Government claimed that Wong delivered the first package to Eng (via Lee) and the second package to "Lap" (at Eng's direction). In the Government's version of events as portrayed at the instant trial, Ching-Yi Chen shows up as a buyer only late in the scheme when Yu and Lee had begun selling the drugs themselves.
The Government explains its changed version of Chen's role as resulting from a reevaluation of Tina Wong's veracity. After the Yu trial, the Government interviewed Wong and gave her a polygraph examination. Following its reconsideration of Wong's testimony, the Government agreed to the vacation of Ching-Yi Chen's conviction in light of the new information. On this appeal, the Government admits that Johnny Eng's name was not mentioned in the earlier trial: "At no time during the Yu trial was Johnny Eng's name mentioned, since Lee and Yu were the persons in the heroin conspiracy with the most direct dealings with Eng, and they were defendants." Brief for United States at 20, n. 8.
Eng was in custody in Hong Kong from August 16, 1989, until he was extradited to the United States on November 1, 1991. He was convicted following a four week jury trial on all counts related to the drug courier and mail package importation schemes, but was acquitted on the charges stemming from the alleged bean sprout machine scheme. Eng was convicted of the following crimes: continuing criminal enterprise ("CCE"), 21 U.S.C. Sec. 848(a); conspiracy to distribute and possess with intent to distribute heroin, 21 U.S.C. Secs. 846, 841(b); importation of heroin, 21 U.S.C. Sec. 952(a); and distribution and possession with intent to distribute heroin, 21 U.S.C. Sec. 841(a)(1). He was sentenced on the CCE count under the 1987 version of the Sentencing Guidelines to 151 months imprisonment followed by 3 years of supervised release. He was sentenced on each of counts 3 through 14 (the substantive drug offenses) to 292 months imprisonment followed by a life term of supervised release. All the sentences run concurrently.
Eng contends that the District Court abused its discretion when it refused to admit the Government's summation, bill of particulars, and grand jury testimony from the Yu trial. The evidence that Eng sought to introduce showed that the Government had argued in Yu that Tina Wong had delivered the first two packages to Ching-Yi Chen; in the instant case, the Government's evidence showed that Wong had delivered the first package to Eng (via Lee), and the second package to "Lap" (at Eng's direction). Tina Wong had testified in Yu that she had delivered the first two packages to Ching-Yi Chen. When Eng first moved to admit the evidence from the earlier trial,...
To continue reading
Request your trial
-
U.S. v. Gordon
...United States v. Kinlock, 174 F.3d 297, 299 (2d Cir.1999); United States v. Abrar, 58 F.3d 43, 47 (2d Cir.1995); United States v. Eng, 14 F.3d 165, 172 n. 5 (2d Cir.1994). There are several reasons for applying plain error standards less rigorously to sentencing errors than to trial errors.......
-
Williams v. United States
...were Class A felonies (i.e. felonies "for which a maximum punishment of life imprisonment or death is authorized." United States v. Eng, 14 F.3d 165, 172 (2d Cir. 1994)). See 18 U.S.C. § 1963(a) (providing maximum punishment for violations of 18 U.S.C. § 1962) and 21 U.S.C. § 841(b) (provid......
-
U.S. v. Sanchez
...in the same statute that amended section 3583(b) by adding the introductory phrase 'Except as otherwise provided.'" United States v. Eng, 14 F.3d 165, 172-73 (2d Cir. 1994) (citing the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1006, 100 Stat. 3207). As the Second Circuit concluded ......
-
U.S. v. Heckard, PLAINTIFF-APPELLEE
...139 F.3d 640, 641 (8th Cir. 1998) (per curiam); United States v. Garcia, 112 F.3d 395, 397-98 (9th Cir. 1997); United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.) cert. denied, 513 U.S. 807 It is true, as Defendant points out, that U.S.S.G. § 5D1.2(a) has been amended since our decision in ......